The rantings of a Public Defender constantly fighting against society's pervasive Police Industrial Complex. Enjoy the unique perspective of one whose life's work is to fight the system through the system.

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Sunday, September 28, 2014

It drives me crazy! You see the police do something that's just nakedly illegal, it's caught on video, it's morally and legally reprehensible. And yet there are no charges brought, or if charges are brought they're undercharged. And even when it goes to trial the case is somehow lost.

It constantly makes me ask "why can't prosecutors convict cops?!"

I've seen so many cases of botched prosecutions of police officers over the years it's begun to resemble a pattern to me. The police circle the wagons (and even if the brass suggest the cop was dirty and they distance themselves from the dirty cop in question, the police union holds no such concern and will defend the officer no matter what, as will the willing lackeys in the press).

My first thought is that typical prosecutors are so in hock to the police that they're simply unable to bring quality prosecutions. When you've spent your whole career justifying whatever police do, made all your connections and promotions through being a backer of police, and have your whole worldview centered around a police way of doing things, it's hard to step back from that and begin seeing how this process clouds you in the case of prosecuting police.

Here's an example of the differences between the way prosecutors and defense lawyers try a case. The DA has a police report and treats it as gospel. Sure there may be mistakes on it, but generally, it's the sign of a hard working police officer writing down his general thoughts about what happened on the day in question so posterity can take a look and use it to convict some bad guy. However, to a defense lawyer, the police report is a treasure trove in little nuggets of missed information, misstatements, errors, omissions, and contradictions that we use to tie a police officer down to a particular account of what happened. When we can show that their report is inconsistent with other objectively provable facts, we hammer the witnesses obvious bias in how they wrote a report that was clearly false. And through this we win trial - lots of trials. It's really central to our way of doing business.

So imagine that a defense lawyer was tasked with prosecuting a dirty cop in a case where they wrote a report about how they were under attack when they shot someone, only to have a video surface later that contradicts that report. From the DA's perspective, they have an inconsistent statement, but DAs are used to proceeding as if the police report is generally a true rendition of the incident that happened. They are far less likely to use that as the lynchpin of their prosecution of a cop. However, us defense lawyers are used to using that false police report as the basis of our undermining of the police witness. So while prosecutors start getting caught up in things like narrative, expert witnesses, use of force experts and other police officers who will (often reluctantly) be used to bring down their fellow officers - us defense lawyers would step outside of that completely and go after police the way we're used to going after them - with their own words.

I have rarely heard of stories of the police report which understates the level of force or overstates the level of resistance being use as the lynchpin of a prosecution case - it always boils down to expert witnesses for them, and other cops being called in to question the tactics. Why not step completely out of that role and just go after these officers in particular? When they try to bring in their use of force experts to show that the offices were acting correctly, it's a pretty simple cross examination - "sir, if the officers were acting correctly, and they knew it, then you would expect them to write a truthful and honest police report wouldn't you?" And then you just hammer that witness with the police report. Don't get down into the weeds with these pro-cop use of force experts, because these guys are always saying the same thing - police are justified in any use of force any time with any amount of violence if they are in "fear." Well, rather than counter the reasonableness, counter the "fear" by showing they lied.

There's a lot of other stuff in there, and I'll come back to more of it later. But to me, the basis of any prosecution against dirty cops must be the lies they told on their initial police reports that they wrote prior to the video of the incidents actually arising.

Sunday, September 07, 2014

I've written before on the fact that I consider propositions to be the scourge of California politics. I still consider them to be so.

In general, I think propositions are WAY overused in California, and they've actually replaced effective governing instead by just going directly to a bunch of uninformed or misinformed voters with a fancily drawn title and promises to make the world a better place with one yes vote. Voters in general tend to be pretty low information, it's bad enough when they vote for politicians they like or don't like based on 30 second ads, but at least those politicians have to actually report back to the voters with the things they've done every few years, but a proposition is a single vote that locks something into law forever without an ability to change it (most propositions are written in a way that require super-super majorities to make even the most minor changes.

I know there's no way to legislate this, but I believe that propositions should only exist in situations where there's a broad consensus to make the change throughout society but politicians otherwise refuse to deal with. Those areas are pitifully few - Medical Marijuana comes to mind, Prop 13 and Prop 187 (respectively - the property tax initiative of 1978 and the illegal immigration initiative of 1994 which was largely ruled unconstitutional) possibly as well - even though I disagree vehemently with the last 2.

What's interesting is how there have been 2 propositions in the last generation which have gone far to reduce penalties for crime (I guess Medical Marijuana could be a 3rd), and both of them are Prop 36. In 2000, Prop 36 passed making drug treatment mandatory for certain drug offenders. Mind you, the police still arrest people like crazy for drugs, prosecutors frequently over-charge sales cases to avoid the drug treatment regime, and plenty of people are still in prison for drugs, but the numbers have gone down dramatically over the last 14 years. And crime has coincidentally (or not?) gone down as well.

The recent Prop 36 of 2012 codified the general practice of former LA District Attorney Steve Cooley, a Republican who also did not favor the abusive incarceration of low-level offenders for life under 3 strikes like his ostensibly liberal Democratic predecessor Gil Garcetti did. When Cooley came into office, he adopted a policy which mandated "2nd strike" sentences (or double the typical punishment but not life sentences) for most non-serious/non-violent 3rd strikers. The effect of Cooley's policy was incredible. Pre Cooley, LA filled the state prisons at an incredible rate with non-serious/non-violent offenders. Since Cooley, those people received hefty prison sentences, but not life sentences. Again, coincidentally (or not), crime continued to plummet in Los Angeles.

The final thing to say about Prop 36, it was mostly retroactive. This means that most inmates serving life sentences for non-serious/non-violent offenses (i.e. - huge numbers of people in LA from the Garcetti era) could petition the Court for re-sentencing as "2nd strikers," meaning they got much shorter sentences and their life sentences were vacated. It will probably shock no one that that the LA DA's office has fought most of those petitioners (there are over 1,000 from LA County alone). Despite this, many have been released, this because they overwhelmingly came from the Garcetti era and hence had more than a decade of credit for time served, so their 2nd strike sentences meant immediate release (anyone surprised that the DA's office can agree with a certain policy, but just can't quite stomach the notion of actually letting people out of prison?).

And wouldn't you know it, the recidivism rate of these 40/50/60 year olds (and older) is VERY low! Just like people argued when 3 strikes was passed back in 1994 - you imprison low-level offenders for life then you're really imprisoning many way beyond their crime years, and end up running an old-folks home for has-been criminals. And the people who argued that were mostly right.

But it is fascinating that after all these anti-crime initiatives that have helped balloon California's prison population to the largest in the country and led to higher spending on prisons than Universities in California, we finally pass 2 common-sense ones here that have paid major dividends in the state, and both are called Prop 36! Who would've known?

Of course, Californian's have a chance to go with another common-sense de-ratcheting of crime initiative this fall - Prop 47, which would reduce all drug possession crimes to misdemeanors. With the money saved going in large parts to our state's schools. You'll never guess who's against it - that's right, the regular cast of characters who's livelihood depends on the criminal industrial complex.

Saturday, September 06, 2014

Why post? Why write? How to keep it up? How to stay relevant? How to write about things that are interesting to people who look at a specific type of blog and don't necessarily want to see someone pontificating on the rest of society's issues, even though those issues are of great interest to you and you think you have something to write about? How to keep writing about what seems like a more and more narrow subject even though it's so full of interesting things on a day to day basis?

And most importantly, how to pick it up again after dropping it for so long without feeling like a fool, or artificial, or like you have nothing more important to say?

I started writing this blog more than a decade ago. It was new, I was a a lot younger, I really loved doing it. I wrote for a while, I got some nice feedback, I did it some more, and as much fun as it was, it became hard to keep it up.

So much has changed in the decade since I started writing this blog, and in the nearly 6 years or so since I last wrote for it. I had someone keep up the activity for me for a while, an earnest and hard-working public defender from San Bernardino. He wrote a bunch, I intended to collaborate with him and make the blog more vibrant, but I just simply dropped the ball, and the blog faded away. In that time, the word "blog" has changed meaning dramatically. So many webpages that were once "blogs" are now legitimate news sites. Some of them get millions of hits per day and are read religiously by people - including myself.

I guess I spent so much time away from PD Dude that it became natural to not write on it anymore. And I guess I haven't missed it that much, but I have missed it. I sometimes see so many things happen and want to comment, and feel I don't have a forum.....

So, for now, I'm back. I have a few things to talk about, and I'm going to talk about them.

Furthermore, I so frequently got good questions from people, I'm going to try and answer them more as well. So feel free to ask a question or two, and I'll do my best to answer them here.

But, for my one tidbit today, and the thing that's really changed the most since I last posted nearly 6 years ago, I want to go back to something I wrote about years ago. I noted on this blog more than 7 years ago that ex-Public Defenders tend to make really bad judges - or at least some of them do. But so much has changed in that time.

Arnold, when he was governor, appointed a bunch of Public Defenders to the bench. For years the tradition had been that only District Attorneys were appointed to the bench. It started with George Dukemeijian, continued with Pete Wilson (both law and order Republicans), and ironically got even worse with Democrat Gray Davis (the ultimate law and order panderer). Arnold got better, and appointed several Public Defender's to the bench. But now with Jerry Brown, he's been appointing huge numbers of PD's to the bench, and it's really starting to make a difference. It's slow, I know it, the number of old-school law and order DA's is still high, and the appellate courts are still filled with them, constantly writing "harmless error," to affirm any conviction. But the Supreme Court is slowly changing, and I think that the lower courts will change as well. They are becoming more human, they are becoming more diverse, like our state. And there is a greater degree of empathy on the bench - both with victims and defendants.

It's not all better, mind you. The deck is so incredibly stacked against us PDs it's incredible. But we have made some strides, and while it's not even, society is changing too. They are less in favor of the death penalty, less in favor of 3 strikes, less in favor of putting drug users away, they have passed 2 proposition 36's (one for drugs one for 3 strikes). I never thought it would happen when I started this blog, but the tide of anger and antipathy is slowly turning. California has become a better place, and I'm so happy to be here to see it.

Anyways, I'll write back again soon with more comments on some of the things I've started to discuss above. Perhaps there is hope for society!